CASE No. 83
TRIAL OF TAKASHI SAKAI
Responsibility for Crimes against Peace and other offences.
CHINESE WAR CRIMES MILITARY TRIBUNAL OF THE MINISTRY OF NATIONAL
DEFENCE, NANKING, 29TH AUGUST, 1946
A.
OUTLINE OF THE PROCEEDINGS
The accused, Takashi Sakai, a Japanese, served as a military commander
in China during the war of 1939·1945, and also prior to that, during the
Sino-Japanese hostilities which followed the Mukden incident of 1931. The
charges laid against him were described as constituting crimes against peace,
war crimes and crimes against humanity. Some charges were made under
the terms of Chinese municipal law and concerned offences against the
internal security of the State.
1. FACTS AND EVIDENCE
The findings of the Tribunal concerning the accused's activities in China
between 1931 and 1939 were as follows:
Takashi Sakai was one of the leaders who were instrumental in Japan's
aggression against China. Soon after the Mukden incident of 1931 he
instigated a man by the name of Li Chi Chun and his followers to form a
gang for the purpose of creating disturbances in Peking and Tientsin and to
.organise terrorist activities. As a result the Secretary of the Kuomintang
office in Tientsin, Li Min Yueh, and a correspondent of the Shanghai Daily
Chu Shao-tien, were assassinated. In February, 1934, attempts were made
on the lives of a Chinese General, Ma Chun-shan, and of the Chairman of
.the Provincial Government of Hopei, Yu Hsueh-chung, in Tientsin. In
May, 1934, the accused threatened to attack Peking and Tientsin by artillery
and air force, and demanded the dismissal of the heads of the local Chinese
authorities in the province of Hopei. He also demanded the withdrawal
of Chinese troops from Hopei. As a Commander of the Japanese 23rd
Army in Kwantung, which was then operating in South China, he ordered
his subordinates to assist in setting up a puppet administration and in
organising a so-called" Peace Army," in an effort to overthrow the Chinese
Government.
The following was established to have taken place during the period of the
Second World War (1939-1945) :
As Regimental Commander of 29 Infantry Brigade in China, the accused
incited or permitted his subordinates to indulge in acts of atrocity. Between
November, 1941, and March, 1943, in Kwantung and Hainan over one
hundred civilians were massacred by shooting or bayoneting; twenty-two
civilians were tortured; women were drowned after severe beating and one
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2
TRIAL OF T AKASHI SAKAI
expectant mother was tortured; two women were raped and mutilated, and
their bodies were fed to dogs; civilians were evicted from their homes and
seven hundred houses were set on fire; rice, poultry and other foods were
plundered. On 17th and 18th December, 1941, in Hongkong, thirty prisoners
of war were massacred. at Lyumen and twenty-four more prisoners were
killed at West Point Fortress. On 19th December, 1941, the personnel of a
British medical unit were massacred-twenty persons in all. Between 24th
and 26th December, 1941, seven nurses were raped and three mutilated,
and sixty to seventy wounded prisoners of war were killed. Valuable collec­
tions of books were pillaged from libraries.
2.
THE DEFENCE OF THE ACCUSED
The accused pleaded not guilty.
Regarding his demand in 1934 that Chinese troops from Hopei should be
withdrawn and that Chinese administrative heads in Hopei should be
dismissed, he pleaded that he had acted within the stipulations of the Inter­
national (Final) Protocol of 1901. The latter constituted a settlement of
the rights of eleven foreign Powers in China following incidents in which
the German Minister, Baron von Ketteler, was assassinated and a number
of Europeans were ill-treated or massacred. The Powers concerned included
Japan.e) They were given the right to keep troops in certain areas in China
in order to maintain free communication between Peking and the sea. The
areas involved included Tientsin and other places in the province of Hopei.
The Chinese.Government undertook specific obligations for the maintenance
of order in the affected areas. All Chinese local administrative heads were
made personally answerable for the order in their districts. If offences
against foreigners recurred or other violations of existing treaties were not
instantly suppressed and the culprits punished, the heads were to be dis­
missed by the Chinese Government and could not be appointed to new posts.
The accused's plea to the charge that he had taken part in a war of
aggression and had committed a crime against peace, was that he had acted
upon the orders of his Government. He also pleaded not guilty to the
charges concerning atrocities on the grounds that he was not responsible for
the acts of his subordinates as he had no knowledge of them.
3. FINDINGS AND SENTENCES
The accused's pleas were rejected and he was found guilty" of participating
in the war of aggression" and " of inciting or permitting his subordinates
to murder prisoners of war, wounded soldiers and non-combatants; to
rape, plunder and deport civilians; to indulge in cruel punishment and
torture; and to cause destruction of property."
For his participation in a war of aggression the accused was found guilty
of a crime against peace. In regard to the atrocities he was found guilty
of war crimes and crimes against humanity.
He was sentenced to death.
(1) The other Powers were Austria, Hungary, Belgium, France, Germany, Great Britain,
Italy, the Netherlands, Spain, Russia and United States of America.
TRIAL OF T AKASHI
B.
1.
SAKAI
3
NOTES ON THE CASE
JURISDICTION OF THE TRIBUNAL
The trial of Takashi Sakai was conducted under the terms of Chinese
Rules governing the Trial of War Criminals which were in force at the time
of the trial.C') .
According to Article 1 of these Rules the primary source of substantive
law for Chinese war crimes tribunals is international law. The latter is
supplemented by the provisions of the above Rules. In cases not covered
by the Rules the law to be applied is that of the Chinese Penal Code. Article
1 reads as follows :
" In the trial and punishment of war criminals, in addition to rules of
international law, the present Rules shall be applied; in cases not
covered by the present Rules, the Criminal Code of the Chinese Republic
shall be applied.
" In applying the Criminal Code of the Chinese Republic, the Special
Law shall as far as possible be applied, irrespective of the status of the
delinquent."
The above provision was implemented in the case under review, both with
regard to crimes against peace and to war crimes and crimes against humanity.
2.
JURISDICTION OVER CRIMES AGAINST PEACE
The Tribunal's verdict on the count of crimes against peace was made
with regard, though without express reference, to rules which were explicitly
formulated in the latest development of international law in this sphere.
The concept of crimes against peace was first defined in the Charter of the
International Military Tribunal at Nuremberg, which was instituted by the
London Agreement of 8th August, 1945, for the trial of the Major War
Criminals of the European Axis. Article 6 (A) of the Charter contains the
following definition :
" Crimes against peace: namely, planning, preparation, initiation or
waging of a war of aggression, or a war in violation of international
treaties, agreements or assurances, or participation in a common plan
or conspiracy for the accomplishment of any of the foregoing."
Another definition was given, in almost identical terms, in the Charter of
the International Military Tribunal for the Far East, which was instituted
by a Proclamation of General MacArthur of 19th January, 1946, for the trial
of Japanese Major War Criminals. Article 5 (A) of this Charter reads as
follows:
" Crimes against peace: namely, the planning, preparation, initiation
or waging of a declared or undeclared war of aggression, or a war in
violation of international law, treaties, agreements or assurances, or
participation in a common plan or conspiracy for the accomplishment
of any of the foregoing."(")
(1) The above Rules were later replaced by a Law Governing the Trial of War Criminals
of 24th October, 1946, an account of which will be found in theAnnex to this Volume.
(2) The words in italics are those not appearing in the Nuremberg Charter.
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TRIAL OF TAKASHI SAKAI
Finally, a third and also very similar definition is contained in Article II
(1) (A) of Law No.· 10 of the Allied Control Council for Germany, of 20th
December, 1945, which regulates the trial of persons other than major war
criminals and is thus a clear indication that responsibility for crimes against
peace is not confined to high State administrators, such as heads of State
or members of Government, but may include any other person, The
definition reads as follows :
" Crimes against peace: Initiation of invasions of other countries
and wars of aggression. in violation of international laws and treaties,
including but not limited to planning, preparation, initiation or waging
of a war of aggression, or a war in violation of international treaties,
agreements or assurances, or participation in a common plan or con­
spiracy for the accomplishment of any of the foregoing."
In its Judgment, the International Military Tribunal at Nuremberg
stressed that the punishment of crimes against peace, as provided in the
Nuremberg Charter, was only a reflection of the rules that had evolved in
international treaties between the First and Second World Wars, and accord­
ing to which a war of aggression constituted a criminal offence punishable
under international law. The treaties referred to included in particular the
Paris or Kellogg-Briand Pact of 27th August, 1928, which condemned
recourse to war for the solution of international controversies, and by which
the Signatories renounced it as an instrument of national policy. Both
Germany and Japan were among the sixty States bound by the Pact.
In the Nuremberg Charter the range of persons liable to prosecution and
punishment for crimes against peace is defined in the first and last paragraph
of Article 6. It includes any person implicated in its commission whether
as an individual or a member of organisations, or as a leader, organiser,
instigator or accomplice. The same follows from the Far Eastern Charter
and Law No. 10.(1)
In the light of the foregoing provision it appears that, by trying the accused
as a person charged with and prosecuted for crimes against peace, the
Chinese War Crimes Military Tribunal at Nanking acted within the com­
petence internationally recognised to courts of law in this sphere.
3. THE ACCUSED'S GUILT AS TO CRIMES AGAINST PEACE
From the wording used in the Judgment, it would appear tha~ the accused
was found guilty of crimes against peace for the reason that he had taken
part in the war of aggression against China. No .further qualifications can
be found in the Judgment beyond this point, so that it would seem that,
according to the Chinese Tribunal, the accused's liability lay in no other
circumstances than in the fact that he had conducted military operations
which formed part of a war of aggression.
This would follow from the wording of the formal verdict, which included
the following terms .:
" The defendant, Takashi Sakai, havinR been found guilty of partici.
pating in the war of aggression. . . ."(")
(1) Article II (2) of Law No. 10 includes explicitly "any person without regard to
nationality or the capacity in which he acted."
(") Italics inserted.
TRIAL
OF T AKASHI
5
SAKAI
The same follows from a statement of the Tribunal, in which it dismissed
the accused's plea of superior orders:
". . . Aggressive war is an act against world peace. Granted that
the defendant participated in the war on the orders of his Government,
a superior order cannot be held to absolve the defendant from liability
for the crime."(l)
The rejection of the plea of superior orders was made on the basis of the
generally recognised and already firmly established rule that to commit
crimes upon superior orders, il1'Cluding those of a Government, does not
relieve the perpetrator from penal responsibility, but may be taken in
mitigation of the punishment;(2) The latter is left to the discretion of the
courts. The above rule was expressed in Article 8 of the Chinese Rules
Governing the Trial of War Criminals, whose relevant passages read:
"Criminals are not exempted from responsibility in the following
cases:
" I. If the act was committed in accordance with orders of superior
officers.
One point in connection with the Tribunal's findings concerning crimes
against peace was not made clear in the Judgment The Tribunal did not
state whether the accused's guilt was determined for taking part in the war
of 1939-1945, or whether it included the period of hostilities which had
existed between Japan and China between 1931 and 1939. The events in
which the accused took part in 1931-1934, in Peking and Tientsin, and in
which he was engaged in activities against Chinese localadministrative heads,
were described in the Judgment immediately after the statement that he was
" one of the leaders who were instrumental in Japan's aggression in China."
This could be taken to mean that such activities were regarded by the Tribunal
as having formed part of the" war of aggression" against China, and that
its verdict on this count included this period preceding the outbreak of
,World War II.
On the other hand, however, there are in the Judgment indications that
the Tribunal may have segregated this period from that of World War II
and that its verdict was confined to the latter period only. When con­
sidering the events of 1931 and 1934 the Tribunal declared that the accused
had thereby" violated international law by undermining the territorial and
administrative integrity of China."e) Later, however, after referring to the
international treaties violated 'by the accused, the' Tribunal added that
" offences against the internal security of the State should be punished in
accordance with the Criminal Code of the Republic of China." This
reference to " offences against the internal security of the State" seem to
fit the findings concerning the accused's guilt in the events of 1931-1934,
where the internal security of the'State would appear to have been at stake
Italics inserted.
On this point see History of the United Nations War Crimes Commission and the
Development of the Law of War, H.M. Stationery Office, London, 1948, Chapter X,
pp. 274-288. Compare also Vol. V of these Reports, pp. 13-22, and Vol. VII, p. 65.
(3) This was a reference to the tenns of the Nine Power Treaty of 6th February, 1922,
concerning the status of China, an account of which will be found later.
(1)
(2)
B
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TRIAL OF TAKASHI SAKAl
due to the accused's activities directed against Chinese local administrative
heads and the maintenance of Chinese troops in the province of Hopei.
With regard to both the Tribunal stressed that there was" no stipulations
in the Final Protocol of 1901 which prohibited the Chinese Government
from stationing Chinese troops in Hopei" and that it gave Japan no " right
to demand the dismissal of Chinese Administrative Heads in Hopei." In
this manner the above reference to offences against the internal security of
the Chinese State and to the Chinese Penal Code may mean that, for the
events of 1931 and 1934, the accused's guilt was determined under the
terms of Chinese municipal law and not 'under those of international law.
This would leave crimes against peace for that period out of the picture.
Irrespective of the above issue, the Tribunal stressed that, in committing
crimes against peace for which he was found guilty, the accused had" violated
the Nine PowerTreaty of 1922 and the Paris Pact " of 1928. The relevant
provisions invoked by the Tribunal were Art. I of the Nine Power Treaty
and Art. 1 of the Paris (Kellogg-Briand) Pact.
The Nine Power Treaty was signed on 6th February, 1922, between the
British Empire, the United States, Belgium, China, France; Italy, Japan,
the Netherlands and Portugal. As stressed in its Preamble, it was concluded
with a view" to stabilise conditions in the Far East, to safeguard the rights
and interests of China, and to promote intercourse between China and the
other Powers upon the basis of equality of opportunity." The first obliga­
tion undertaken by the Powers was to "respect the sovereignty, the in­
dependence, and the territorial and administrative integrity of China." It
will be remembered that the last terms were invoked by the Tribunal against
the accused. The full text of Article I of the Nine Power Treaty of 1922
runs as follows :
" The Contracting Powers, other than China, agree:
"(1) To respect the sovereignty, the independence, and the territorial
and administrative integrity of China.
.. (2) To provide the fullest and most unembarrassed opportunity to
China to develop and maintain for herself an effective and stable
Government.
.. (3) To use their influence for the purpose of effectually establishing
and maintaining the principle of equal opportunity for the com­
merce and industry of all nations throughout the territory of China.
"(4) To refrain from taking advantage of conditions in China in order
to seek special rights or privileges' which would abridge the rights
of subjects or citizens of friendly States, and from countenancing
action inimical to the security of such States."
Article 1 of the Paris Pact runs as follows :
"The High Contracting Parties solemnly declare, in the names of
their respective peoples, that they condemn recourse to war for the
solution of international controversies and renounce it as an instrument
of national policy in their relations with one another."
As will be noticed, the combined effect of the above two Articles, which
were binding upon Japan, was to make a military aggression against China
a violation of the two Treaties.
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TRIAL OF TAKAS HI SAKAI
With regard to the concept of crimes against peace the above references
show two important features. The first is that the Tribunal had thereby
stressed that the accused had taken part in" a war in violation of international
treaties," which is included in the definitions of crimes against peace pre­
viously quoted. The second feature is that the Tribunal's verdict on this
count was entirely based upon rules of international law, as evidenced by
the texts of the Nuremberg and Far Eastern Charters, and of Law No. 10.
4. THE ACCUSED'S GUILT AS TO WAR CRIMES AND CRIMES AGAINST HUMANITY
With reference to offences against civilians and members of the armed
forces for which the accused was found guilty, the Tribunal said:
" In inciting or permitting his subordinates to murder prisoners of
war, wounded soldiers; nurses and doctors of the Red Cross and other
non-combatants, and to commit acts of rape, plunder, deportation,
torture and destruction of property, he- had violated the Hague Con­
vention concerning the Laws and Customs of War on Land and the
Geneva Convention of 1929.. These offences are war crimes and
crimes against humanity."
The relevant provisions of the above two Conventions which the Tribunal
found to have been violated were: Article 28 of the Hague Regulations,
forbidding" the giving over to pillage of a town or place, even when taken
by assault" ; Article 46 of the same Regulations protecting" family honour
and rights, individual life, and private property, as well as religious convic­
tions and worships," and" forbidding confiscation of private property" ;
Article 47 of the Hague Regulations declaring any pillage " expressly for­
bidden"; Articles I to 6, 9 and 10 of the Geneva Convention relative to
. the Treatment of Prisoners of War, 0£1929, which protect prisoners of war
from ill-treatment, as well as protecting their lives.
The Tribunal dismissed the accused's plea that he could not be held
responsible for the above violations because they were perpetrated by his
subordinates and he had no knowledge of them. The Tribunal's findings
were as follows :
". . . That a field Commander must hold himself responsible for
the discipline of his subordinates, is an accepted principle. It is in~
conceivable that he should not have been aware of the acts of atrocities
committed by his subordinates. . . . All the evidence goes to show th~t
the defendant knew of the atrocities committed by his subordinates and
deliberately let loose savagery upon civilians and prisoners of war."
The principle that a commander is responsible for the discipline of his
subordinates, and that consequently he may be held responsible for their
criminal acts if he neglects to undertake appropriate measures or knowingly
tolerates the perpetration of offences on their part, is a rule generally accepted
by nations and their courts of law in the sphere of the laws and customs of
war. The above findings are therefore in line with the jurisprudence created
with regard to this rule, in particular on the occasion of war crime trials
held after the Second WorldWar.(1)
(1) See Trial oj Tomoyuki Yamashita, in Volume IV of this series, especially pp. 83-96;
Trial of Erhard Milch, in Volume VII, especially pp. 61-64; Trial afGeneral Wi/helm List
alld others, in Volume VIII, pp. 88-9; Trial of Wilhelm VOll Leeb alld 13 others (High
Command TriaJ), in Volume XII, pp. 105-12.
B2